### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 2833

D AWAIN B ELL and A LICE S PINKS

,

on behalf of themselves and all

others similarly situated,

Plaintiffs

‐ Appellants

,

v.

C ITY OF C HICAGO

, Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 14 C 7382

— Gary Feinerman

, Judge

.

____________________

A RGUED F EBRUARY 11, 2016

— D ECIDED A UGUST 30, 2016

____________________

Before R IPPLE

, K ANNE

, and W ILLIAMS

, Circuit Judges

.

K ANNE

, Circuit Judge

. In September 2012, Chicago Police

Department officers arrested Plaintiff Dawain Bell for posses

‐

sion of a controlled substance. At the time, Bell was driving

Plaintiff Alice Spinks’s vehicle. Chicago Police impounded the

vehicle after Bell’s arrest pursuant to Chicago Municipal Code

§ 7

‐ 24

‐ 225, which permits police to impound a vehicle when2 No. 15

‐ 2833

officers have probable cause to believe it contained a con

‐

trolled substance or was used in an illegal drug transaction.

Spinks challenged the impoundment two days later at a

hearing before an administrative law judge (“ALJ”) in the City

of Chicago’s Department of Administrative Hearings. The

ALJ determined that probable cause existed to impound the

vehicle because at the time of impoundment it contained “un

‐

lawful drugs” in violation of § 7

‐ 24

‐ 225. Less than a month

later, an ALJ found Spinks liable for violating § 7

‐ 24

‐ 225 and

ordered that she pay the prescribed penalty of $2,000 plus

$180 in storage and towing fees. 1 There is no evidence that

Spinks challenged the ALJ’s determination in Cook County

Circuit Court, which she had the right to do.

Spinks and Bell (“Plaintiffs”) filed this lawsuit against De

‐

fendant City of Chicago (“City”) in Cook County Circuit

Court in 2014, alleging, amongst other theories, that the City’s

impoundment

‐ related ordinances violated Illinois law and

were facially invalid under the Fourth Amendment to the U.S.

Constitution. The City removed the action to federal court

pursuant to 28 U.S.C. § 1441 based on Plaintiffs’ allegations

that the impoundment ordinance violated the Fourth Amend

‐

ment. The City then moved to dismiss the complaint under

Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim. After allowing Plaintiffs to amend their complaint, the

district court deemed the City’s previously filed motion to dis

‐

miss applied to the amended complaint and granted the mo

‐

tion. In doing so, the district court only dismissed Plaintiffs’

Fourth Amendment claim with prejudice and remanded

1 Bell was later convicted in Cook County Circuit Court for possession of

cocaine and received a sentence of 18 months’ probation.No. 15

‐ 2833 3

Plaintiffs’ remaining state law claims to state court. This ap

‐ peal followed.

I. A NALYSIS

We review de novo a district court’s decision to dismiss a

complaint for failure to state a claim pursuant to Rule 12(b)(6).

Vesely v. Armslist LLC

, 762 F.3d 661, 664 (7th Cir. 2014). In eval

‐ uating a complaint’s sufficiency, “we construe it in the light

most favorable to the nonmoving party, accept well

‐ pleaded

facts as true, and draw all inferences in [the party’s] favor.”

Reynolds v. CB Sports Bar, Inc.

, 623 F.3d 1143, 1146 (7th Cir.

2010). While a plaintiff need not plead “detailed factual alle

‐ gations” to survive a motion to dismiss, she still must provide

more than mere “labels and conclusions or a formulaic recita

‐

tion of the elements of a cause of action” for her complaint to

be considered adequate under Federal Rule of Civil Proce

‐

dure 8. Ashcroft v. Iqbal

, 556 U.S. 662, 678 (2009) (internal quo

‐

tation marks omitted).

Plaintiffs’ two principal arguments are that the City’s im

‐ poundment

‐ related ordinances (“Ordinances”) are facially in

‐

valid under the Fourth Amendment because the Ordinances:

(1) permit warrantless seizure of vehicles in all instances and

(2) allow for a non

‐ judicial officer—a City ALJ—to determine

whether probable cause exists to allow the vehicle to remain

seized. Plaintiffs’ remaining arguments are frivolous and do

not warrant further discussion.

There is no categorical bar to mounting a facial challenge

under the Fourth Amendment, City of Los Angeles v. Patel

, 135

S. Ct. 2443, 2449 (2015), but, in doing so, Plaintiffs assume a

demanding burden—“establish[ing] that a ‘law is unconstitu

‐

tional in all of its applications,’” id. at 2451 (quoting Wash.4 No. 15

‐ 2833

State Grange v. Wash. State Republican Party

, 552 U.S. 442, 449

(2008)). Although “such challenges are the most difficult

... to

mount successfully,” the Supreme Court has recently clarified

that the proper inquiry under this “exacting standard” should

be “only [on] applications of the statute in which it actually

authorizes or prohibits conduct.” Id

. at 2449, 2451 (internal

quotation marks omitted).

A. Warrantless Seizure of Vehicles

The Fourth Amendment provides, in relevant part, for

“[t]he right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable

... seizures ....” 2 (em

‐ phasis added). The Supreme Court has explained that “[a]

‘seizure’ of property occurs when there is some meaningful

interference with an individual’s possessory interests in that

property” caused by a government actor. United States v. Ja

‐

cobsen

, 466 U.S. 109, 113 (1984). In evaluating such a challenge,

we must determine whether the “seizure” of property was

“unreasonable,” a determination that requires a “balancing of

governmental and private interests.” New Jersey v. T.L.O.

, 469

U.S. 325, 341 (1985). Generally, “seizures of personal property

are unreasonable within the meaning of the Fourth Amend

‐

ment, without more, unless

... accomplished pursuant to a ju

‐

dicial warrant.” Illinois v. McArthur

, 531 U.S. 326, 330 (2001)

(alteration in original and internal quotation marks omitted).

But because “reasonableness is still the ultimate standard un

‐

der the Fourth Amendment,” Soldal v. Cook Cty., Ill.

, 506 U.S.

2 Like several other amendments, the Fourth Amendment has been made

applicable to the states via the Fourteenth Amendment. Ker v. California

,

374 U.S. 23, 30–31 (1963).No. 15

‐ 2833 5

56, 71 (1992) (internal quotation marks omitted), there are ex

‐ ceptions that allow for warrantless seizures, see McArthur

, 531

U.S. at 330–31.

Plaintiffs argue that the City’s Ordinances—§§ 2

‐ 14

‐ 101

(Seized/unclaimed property), 2

‐ 14

‐ 132 (Impoundment), and

2

‐ 14

‐ 135 (Impoundment—Towing and storage fee hearing)—

are facially invalid under the Fourth Amendment because the

Ordinances allow for warrantless seizures of vehicles in all

cases. Because Plaintiffs have mounted a facial challenge, “the

proper focus of the constitutional inquiry is [seizures] that the

law actually authorizes, not those for which it is irrelevant.”

Patel

, 135 S. Ct. at 2451. Under this demanding standard,

Plaintiffs must demonstrate that the Ordinances are unconsti

‐

tutional in all the seizures that the Ordinances “actually au

‐ thorize[].” Id. Stated differently, Plaintiffs must show the Or

‐

dinances’ “actual applications” are unconstitutional. Id. We

need not proceed very far in our inquiry, however, to deter

‐

mine that Plaintiffs’ facial challenge fails, as the Ordinances’

“actual application[]” in their case does not violate the Fourth

Amendment.

Section 2

‐ 14

‐ 132 is the general provision that allows a po

‐

lice officer or authorized City agent to impound a vehicle in

‐

volved in a “status

‐ related offense” and a “use

‐ related of

‐

fense.” A “status

‐ related offense” is an offense related to a vi

‐

olation of a registration

‐ related ordinance whereas a “use

‐ re

‐

lated offense” is one where the vehicle is used in an illegal

manner or in connection with an illegal act, such as possession

of illegal drugs in a vehicle, drag racing, or solicitation of a

prostitute. Regardless of the type of substantive offense, the

Ordinances require that the officer or authorized City agent

have probable cause to believe that an enumerated ordinance6 No. 15

‐ 2833

violation has occurred before the vehicle can be seized and

impounded. 3

One such enumerated violation, incorporated by reference

into § 2

‐ 14

‐ 132, is Chicago Municipal Code § 7

‐ 24

‐ 225, which

is the provision used by police to seize and impound Spinks’s

vehicle. This “use

‐ related offense” provision states in relevant

part that “[w]henever a police officer has probable cause to be

‐

lieve that a vehicle is subject to seizure and impoundment

pursuant to this section, the police officer shall provide for the

towing of the vehicle to a facility controlled by the city or its

agent.” § 7

‐ 24

‐ 225(b) (emphasis added). Vehicles are only

“subject to seizure and impoundment” under § 7

‐ 24

‐ 225 if the

vehicle “contains any controlled substance or cannabis” or “is

used in the purchase, attempt to purchase, sale or attempt to

sell such controlled substances or cannabis.” Under this pro

‐

vision then, the officer seizing the vehicle without a warrant

must have probable cause to believe it has illegal drugs in it or

has been used in an illegal drug transaction.

We can divine no difference between the warrantless sei

‐

zures authorized by § 7

‐ 24

‐ 225 and those permitted by the Su

‐

preme Court in Florida v. White

, 526 U.S. 559 (1999) and in

G.M. Leasing Corp. v. United States

, 429 U.S. 338 (1977), as well

as in our decision in United States v. Pace

, 898 F.2d 1218 (7th

Cir. 1990). In White

, the Supreme Court held a police officer

3 There are two authorizations for impoundment that do not explicitly in

‐

corporate the requirement that a police officer have probable cause to sus

‐

pect a violation before seizure. See Chicago Mun. Code §§ 9

‐ 12

‐ 090, 9

‐ 92

‐

035. Those sections, however, provide for impoundment of a vehicle in

‐

volved in drag racing, § 9

‐ 12

‐ 090, or whose driver fled from a police officer

and could not be apprehended at the time of flight and is inapplicable to

Plaintiffs’ case, § 9

‐ 92

‐ 035.No. 15

‐ 2833 7

did not need a warrant to seize a vehicle for possible forfeiture

when the officer had probable cause to believe the vehicle it

‐

self was contraband, which, under Florida law, meant that the

vehicle had been used in connection with an illegal drug of

‐

fense. The Supreme Court expressly rejected an argument

similar to Plaintiffs’, namely that there is some difference “be

‐

tween permitting the immediate search of a movable automo

‐

bile based on actual knowledge that it then contains contra

‐

band [and] the discretionary seizure of a citizen’s automobile

based upon a belief that it may have been used at some time

in the past to assist in illegal activity.” White

, 526 U.S. at 564

(alteration in original and internal quotation marks omitted).

In G.M. Leasing

, the Supreme Court held that Internal Rev

‐

enue Service agents could seize a vehicle without a warrant if

they had probable cause to believe the vehicle was subject to

seizure and the seizure occurred “on public streets, parking

lots, or other open places.” 429 U.S. at 351–52. Similarly, in

Pace

, after we determined that an Illinois forfeiture statute

permitted warrantless seizures of vehicles, we joined several

other circuits in holding that under the Fourth Amendment,

police “may seize a car without a warrant pursuant to a for

‐

feiture statute if they have probable cause to believe that the

car is subject to forfeiture.” Pace

, 898 F.2d at 1218. There, the

Illinois forfeiture statute was remarkably similar to § 7

‐ 24

‐ 225

in that it permitted police to seize a vehicle if police had prob

‐

able cause to believe the vehicle had been used in connection

with or facilitated illegal drug activity.

Taken together, we read these three opinions as permitting

the type of warrantless seizures authorized by § 7

‐ 24

‐ 225, the

ordinance used to seize Spinks’s vehicle. In other words, these8 No. 15

‐ 2833

three opinions when read together find that an ordinance au

‐ thorizing a warrantless seizure is not “unreasonable” under

the Fourth Amendment when a police officer has probable

cause to believe that a vehicle is subject to seizure because it

was used in some violation of law, here for having illegal

drugs in it.

Plaintiffs attempt to circumvent White and G.M. Leasing by

arguing that even if those cases authorize the seizure in their

case, the City’s Ordinances authorize impoundment for a va

‐ riety of other ordinance violations. True. But in making a fa

‐

cial challenge, Plaintiffs must demonstrate that a particular

law is unconstitutional in all its actual applications, including

its application to them. Plaintiffs make no real effort to do so,

other than arguing that the law at issue in White was a forfei

‐

ture statute, not an impoundment ordinance. That fact is a

distinction without a difference. The fact that the statute at is

‐

sue in White was called a forfeiture statute does not change

that the Supreme Court deemed constitutional the warrant

‐

less seizure of a vehicle supported by probable cause to be

‐

lieve that the vehicle was used in a violation of the law.

Plaintiffs also read Patel as standing for the proposition

that a law that permits warrantless seizures in all instances is

facially unconstitutional. Patel does not stand for such a prop

‐

osition. It was not a seismic shift in Fourth Amendment juris

‐ prudence that wiped away the exceptions to the warrant re

‐ quirement created by White

, G.M. Leasing

, and those cases’

progeny. Rather, Patel considered whether a municipal ordi

‐

nance allowing for searches of hotel registries without a war

‐

rant violated the Fourth Amendment. The ordinance at issue

there, unlike the ordinance at issue in our case, allowed the

search to occur without probable cause. That is why the CourtNo. 15

‐ 2833 9

evaluated whether the ordinance was permitted under the

“administrative search exception to the warrant requirement”

and determined it did not. Patel

, 135 S. Ct. at 2452. Patel did

not, however, call into question the constitutionality of the

City’s Ordinances or similar forfeiture statutes, which only al

‐

low for seizure of a vehicle after the officer or state actor de

‐ veloped probable cause of a violation of the law.

B. Post

‐ Seizure Procedures

Plaintiffs argue the post

‐ seizure procedures provided by

the City’s Ordinances facially violate the Fourth Amendment

because the Ordinances fail to provide a neutral officer from

the judicial branch to determine whether probable cause ex

‐

ists to continue possessing the vehicle after it is seized.

There is a fundamental flaw with Plaintiffs’ argument

though. Plaintiffs cannot explain how their challenge to the

post

‐ seizure procedure process implicates the Fourth Amend

‐

ment, as the seizure in Plaintiffs’ case and all others under the

Ordinances is complete when the officer or agent seizes and

impounds the vehicle. Lee v. City of Chicago

, 330 F.3d 456, 466

(7th Cir. 2003). As we explained in Lee

, “[o]nce an individual

has been meaningfully dispossessed, the seizure of the prop

‐

erty is complete, and once justified by probable cause, that

seizure is reasonable. The amendment then cannot be invoked

by the dispossessed owner to regain his property. Therefore,

[the plaintiff’s] car was seized when it was impounded.” Id.

Here, Plaintiffs’ complaint is with the individual and the

process for reviewing whether the police or City agent had suf

‐

ficient probable cause to initially seize the vehicle. Their com

‐ plaint is that this reviewing individual is: (1) not a judicial of

‐10 No. 15

‐ 2833

ficer and (2) cannot be unbiased in reviewing whether the po

‐

lice officer or City agent had probable cause in the first in

‐

stance to seize the vehicle. In other words, they challenge the

procedures allowing for the City’s continued possession of a

vehicle, not the initial seizure of the vehicle.

Plaintiffs are not without a remedy, however, as the Due

Process Clause of the Fourteenth Amendment can be used to

challenge post

‐ seizure procedures and the City’s continued

retention of Spinks’s vehicle. See United States v. James Daniel

Good Real Prop.

, 510 U.S. 43, 52 (1993) (holding that the gov

‐

ernment’s continued retention of property after seizure must

comply with the Due Process Clause); Towers v. City of Chicago

,

173 F.3d 619, 626–29 (7th Cir. 2009) (evaluating a substantive

and procedural due process challenge to same use

‐ related or

‐

dinance used to impound Spinks’s vehicle).

Despite the availability of this challenge, Plaintiffs have

made the conscious decision not to pursue a substantive or

procedural due process challenge. Indeed, Plaintiffs have as

‐

serted that “[t]o suggest that these Plaintiffs should have at

‐

tacked this Fourth Amendment defect on due process

grounds is absurd.” (Appellant Br. 13.) Color us absurd then,

but such a clear statement amounts to a waiver of any due

process argument on appeal. Hojnacki v. Klein

‐ Acosta

, 285 F.3d

544, 549 (7th Cir. 2002) (“A party waives any argument that it

does not raise before the district court or, if raised in the dis

‐

trict court, it fails to develop on appeal.”).

II. C ONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.